Legislative and Regulatory Reform Bill - Standing Committee A

[Mr. Martin Caton in the Chair]

Legislative and Regulatory Reform Bill

Clause 1 - Purpose

Question proposed [28 February], That the clause stand part of the Bill.

Question again proposed.

Martin Caton: I remind the Committee that with this we are taking the following:
Amendment No. 55, in clause 18, page 9, line 30, at end insert—
“‘reforming” means repealing, simplifying or clarifying or making better provision for achieving its purposes;’.
Amendment No. 61, in clause 18, page 9, line 35, at end add—
‘(2)In section 1, “changes” means only those changes that are reasonably related to developments in the common law since the date of the Law Commission’s Recommendation.’.
New clause 2—Reserved areas of competence—
‘(1)Schedule [Reserved areas of competence] shall have effect.
(2)A Minister may not make an order under section 1 containing provisions relating to the reserved areas of competence as set out in Schedule [Reserved areas of competence].
(3)A Minister of the Crown may, subject to a resolution of both Houses of Parliament, amend by order the reserved areas of competence in Schedule [Reserved areas of competence].’.
New schedule 1—‘RESERVED AREAS OF COMPETENCE—
For the purposes of this Act, the reserved areas of competence are those relating to—
(a)provisions incompatible with the European Convention on Human Rights;
(b)the Human Rights Act 1998 (c. 42);
(c)Parliament;
(d)the Civil Service;
(e)the courts;
(f)the registration and funding of political parties;
(g)international relations;
(h)defence;
(i)treason;
(j)terrorism; and
(k)national security.’.

Jim Murphy: I am delighted to welcome you, Mr. Caton, to our proceedings this afternoon. This morning’s debate was productive in terms of content rather than progress. When we adjourned, I was bringing my remarks on clause 1 stand part to a conclusion. Of course, we understand why Sir Nicholas, your co-Chairman, cannot be with us this afternoon. I think that we heard earlier that he is on his way to Manchester to take part in the BBC’s “Newsnight”.

Oliver Heald: “Question Time”.

Jim Murphy: Indeed. I hope that our proceedings will finish in time for us to witness him on television.
As I was saying earlier, there have been difficulties with the Regulatory Reform Act 2001. It provided a power to reform legislation that imposed burdens.

David Howarth: I hear the Minister moving away from amendment No. 61, which he was discussing when the debate was interrupted. May I bring him back to that? He was saying that the amendment was defective because it applied only to the common law. I refer him to what he said on Tuesday at column 34 of Hansard when discussing the Law Commission powers and their relationship to this measure:
“The combination of clauses 1 and 2 means that the intended impact of the amendment”—
that was the “with or” amendment—
“appears mainly to apply to Law Commission recommendations reforming the common law. Any changes to a Law Commission recommendation that relate to reforming legislation and satisfy the various safeguards to which orders are subject could, with one exception, be delivered in an order under clause 1(1)(a).”—[Official Report, Standing Committee A, 28 February 2006; c. 34.]
According to the Minister’s own words, the argument that he was making before the interruption simply is not correct.

Martin Caton: Order. That was a long intervention. I hope that in future interventions will be rather briefer.

Jim Murphy: Thank you, Mr. Caton. I shall try to obey your strictures for both interventions and speeches.
The hon. Gentleman and I simply disagree about this issue. The Bill allows the introduction of non-controversial Law Commission recommendations, be they on common law or on legislation. An example of a change in legislation in a wider sense in accordance with the better regulation agenda might involve merging regulators, to which I referred in our conversation earlier. A regulator is set up by one piece of legislation, and a second regulator is facilitated by separate legislation. As we bring about the mergers power in the Bill, we will make amendments of legislation. It is important that we have that power to reform both common law and legislation.
Let me bring my comments to a close. We have learned the lessons of the 2001 Act. Business and others are calling for action to speed up the pace of regulatory reform. The Bill provides a flexible power to reform the law so that worthwhile reforms are not delayed or implemented piecemeal because of arbitrary limits on order-making powers and so that important orders are not competing with other, higher-profile, more contentious aspects of legislation, perhaps emanating from manifestos, in a crowded parliamentary timetable. The power in clause 1 should allow the delivery of a greater volume of minor reforms by order, and more orders creating substantial benefits—

Christopher Chope: Will the Minister give way?

Jim Murphy: No, I will not.
The power should mean benefits for the public, private and voluntary sectors as well as for individuals. I urge my hon. Friends to oppose the amendments.

Oliver Heald: What a disappointment that was. New clause 2, which I tabled, is one of the recommendations of the Regulatory Reform Committee of this House—a Select Committee that the Minister described as having produced an excellent report, so why will he not agree to this small protection? He says that he does not want constitutional measures to be dealt with by order, so why will he not agree to this sensible protection?
The hon. Member for Somerton and Frome (Mr. Heath) kindly said that his party would support new clause 2 and new schedule 1 if they went to a Division. I am afraid that they will have to. There comes a point where enough is enough. The Minister must start giving us some of the protections and safeguards that he told us he would.

Alison Seabeck: You mentioned the Select Committee’s concerns. We were concerned that there should be some no-go areas, but some of the issues that you have raised with the new schedule and new clause are complicated by the proposals that the hon. Member for Somerton and Frome will be introducing later. I am not sure what clause it is—it might be new schedule 2—in which you two will be proposing an optional list. I should like the Minister to make a decision on that now.

Martin Caton: Order. I ask the hon. Lady to stop referring to other Members as “you”.

Alison Seabeck: Forgive my error, Mr. Caton.

Oliver Heald: We are trying to be reasonable. We are introducing a range of options, but new clause 2 is the option suggested by the Regulatory Reform Committee in a report that the Minister himself says is excellent. Why will he not agree to it? Amendment No. 61 uses the very words that he used yesterday to describe his intentions on that matter. Why will he not put what he says he wants on the statute book? Has not the time come for him to put up and agree to what he says he wants?
What is holding him back? If it is just that he does not like the wording, let him say so and tell us that he will table his own amendments on Report; we would not mind that. But it seems ridiculous to just say, “No, no, no,” and to be as adamant as he is being. We are not satisfied, and we shall certainly press new clause 2 to a Division. If the hon. Member for Cambridge (David Howarth) wants to push amendment No. 61 to a Division, we shall support him. We cannot allow clause 1 to stand part in its current parlous state.

David Heath: I welcome you to the Committee unexpectedly this afternoon, Mr. Caton. There is a dynamic to Standing Committees that is important if the Committee is to  make progress. That dynamic is very much in the Minister’s hands; it depends on whether the Minister listens to the arguments put forward and responds appropriately. This Minister has failed the Committee on the most important part of the Bill.
Over lunch, I discussed whether there ought to be some sort of procedural amendment available to the House to replace the Minister. Perhaps the hon. Member for Plymouth, Devonport (Alison Seabeck), who has been speaking a lot more sensibly than her Front-Bench colleague, would make an adequate replacement. There she is, sitting on the substitutes’ bench.
In all seriousness, the Minister cannot give us arguments that are not just self-contradictory but often self-contradictory in the course of a single paragraph. He has made assertions that he reversed before finishing his speech. The difference between what he is saying today and what he said on Tuesday is palpable. My hon. Friend the Member for Cambridge made a point about what the Minister said in column 34 on Tuesday. It was not a matter of disagreement between my hon. Friend and the Minister; it was a matter of disagreement between the Minister and himself. He said clearly that there was no problem with the use of the words “with or without changes” in respect of legislative changes, as it referred to common law changes. Now he says that the problem with our amendment relating to common law changes is that it does not apply to legislative changes. We cannot proceed with an argument or a sensible debate if he contradicts himself so patently in the space of two days.

Christopher Chope: Does the hon. Gentleman accept that what the Minister said implies that he wishes to have substantial powers to amend Law Commission recommendations on forcible entry? That is the only area of Law Commission recommendations in the legislative sphere that is not already covered by clause 1(1)(a).

David Heath: I fear that the hon. Gentleman is applying logic to the matter. It is quite clear from the way in which the Minister has produced his arguments that logic is not a quality with which he is familiar. It is not a funny matter; the Bill proposes the most fundamental change possible to our constitution, and it has been put forward under the guise of a deregulatory Bill.
We have said many times that we have no problem with a Bill that genuinely deals with deregulatory issues, or even with the intentions that the Minister has explained as his purpose behind part 1 of the Bill. We have a problem, however, with the fact that the words in the Bill do not correspond with what the Minister says are his intentions when he is being coherent. That is why clause 1 cannot stand part of the Bill in its present form.
Alison Seabeckrose—

David Heath: I give way to the deputy Minister, whom I hope will soon be called forward.

Alison Seabeck: I will try to get the form of address right. Forgive me, Mr. Caton, I am new to this.
The hon. Gentleman is being grossly unfair to my hon. Friend the Minister. I hope that I am thinking in the same way as the Minister when I say that the Select Committee understood that there was more than one way to skin a cat. When we get past clause 1 we might see some scope for further debate on some of the details of how we put protections in place.

David Heath: I sincerely hope that we will, but I cannot buy clause 1 on the basis of some promise of amelioration in future. We have had no indication from the Minister of what the safeguards will be, of which he talks a great deal. He does not accept amendments in his own words, tabled by myself and my hon. Friend the Member for Cambridge, that would provide such protections. Our conclusion must be that he is not listening or, if he is, then his thoughts on the matter are so muddled as to be incapable of expression. I therefore firmly intend to vote against stand part, and I believe that that will also be the intention of others. If the hon. Member for North-East Hertfordshire (Mr. Heald) wishes to press his new schedule, we will support it.
When we put forward what the Minister himself has said is a necessary safeguard, he rejects it. We therefore have such a difficulty with the Government’s argument that we intend also to press amendment no. 61. I hope that we will have the opportunity to do so, and perhaps expose the Government’s position as the risible one that it is.

Question put, That the clause stand part of the Bill:—

The Committee divided:  Ayes 9, Noes 7.

NOES

Question accordingly agreed to.
Clause 1 ordered to stand part of the Bill.

Clause 2 - Provision

Christopher Chope: I beg to move amendment No. 32, in clause 2, page 2, line 7, leave out ‘repealing or replacing’.

Martin Caton: With this it will be convenient to discuss the following:
Amendment No. 33, in clause 2, page 2, line 8, leave out subsection (2).
Amendment No. 69, in clause 2, page 2, line 20, leave out paragraph (b).
Amendment No. 34, in clause 2, page 2, line 21, leave out subsection (4).
Amendment No. 35, in clause 2, page 2, line 25, leave out subsection (5).
Amendment No. 45, in clause 2, page 2, line 25, at end add—
‘(6)But no order under this Act shall confer on any person the power to legislate.’.
Amendment No. 46, in clause 2, page 2, line 25, at end add—
‘(7)No order may be made under section 2(1) for any purpose substantially different from that for which the legislation was passed.’.
New clause 7—Excepted Acts—
‘(1)Schedule (Excepted Acts) shall have effect.(2)Provision under section 2(1) may not amend this Act or any provision amending this Act or the Human Rights Act 1998 or any provision amending that Act, or any Act specified in Schedule (Excepted Acts) to this Act or to any provision amending those Acts.’.
New clause 8—Judicial Tenure—
‘Provision under section 2(1) may not affect the appointment, terms of engagement, dismissal or tenure of any judge.’.
New clause 9—Principles of natural justice—
‘Provision under section 2(1) may not affect, abrogate or modify any of the principles of natural justice.’.
New clause 10—Powers and composition of Parliament and elections—
‘Provision under section 2(1) may not affect, abrogate or modify the law relating to the powers or composition of Parliament or the law governing elections.’.
New clause 11—Powers and composition of Parliament—
‘Provision under section 2(1) may not affect, abrogate or modify the powers or competences of the House of Commons or the House of Lords.’.
New clause 12—Church of England—
‘Provision under section 2(1) may not affect, abrogate or modify the law relating to the Church of England.’.
New clause 13—Habeas corpus—
‘Provision under section 2(1) may not subject anyone to detention without charge or remove from anyone the remedy of Habeas Corpus.’.
New clause 14—Jury trial—
‘Provision under section 2(1) may not affect the right to or the availability of jury trial.’.
New clause 15—Extradition—
‘Provision under section 2(1) may not subject any person to extradition.’.
New clause 16—Confiscation of property—
‘Provision under section 2(1) may not authorise the confiscation or appropriation of property, whether with or without compensation, except to the extent to which it is authorised by the legislation which the order amends.’.
New schedule 2—‘Excepted Acts—
The Acts referred to in section (Excepted Acts) are—
Act of Settlement 1700
Anti-Terrorism, Crime and Security Act 2001
Bail Act 1976
Bill of Rights 1688
Church of England Assembly (Powers) Act 1919
Church of Scotland Act 1921
Civil Contingencies Act 2004
Claim of Right 1689
Constitutional Reform Act 2005
Criminal Justice and Public Order Act 1994
European Communities Act 1972
Freedom of Information Act 2000
Government of Ireland Act 1920
Government of Wales Act 2006
Government of Wales Act 1998
Habeas Corpus Acts 1679 to 1862
House of Lords Act 1999
Identity Cards Act 2006
Immigration Act 1971
Local Government Act 1972
Magna Carta 1215
Ministerial and Other Salaries Act 1975
Ministers of the Crown Act 1975
Northern Ireland Act 1947
Northern Ireland Act 1998
Official Secrets Acts 1911 to 1989
Parliament Acts 1911 and 1949
Parliamentary Constituencies Act 1986
Police and Criminal Evidence Act 1984
Prevention of Terrorism Act 2005
Protestant Religion and Presbyterian Church Act 1706
Public Order Acts 1936 to 1986
Regulation of Investigatory Powers Act 2000
Representation of the People Acts 1981 to 2002
Scotland Act 1998
Security Service Act 1989
Statute of Westminster 1931
Succession to the Crown Act 1707
Terrorism Act 2000
Terrorism Act 2006
Union with England Act 1707
Union with Scotland Act 1706
Welsh Church Disestablishment Act 1914.’.

Christopher Chope: The theme of these amendments is to try to deal with and control the extensive powers that the Government are taking in this legislation and to rein back that scope so that we are left with the purely essential. I am very disappointed about what happened in relation to clause 1. The Minister’s response to recommendations 4 and 5 in the Regulatory Reform Committee’s special report of Session 2005-06, which argued that Parliament should be able to veto the delivery of individual proposals by order and prevent the Government from reintroducing an order to address the policy problem from two years after that veto, was:
“As the Bill enters Committee stage the Government will listen carefully to the views of Parliament and seek its support in achieving the right balance between powers and protections.”
So far the Minister does not seem to have been able to deliver on what he said as recently as Friday of last week in a letter to the Chairman of that Select Committee. I hope that he can do a bit better when we consider these amendments to clause 2.
The purpose of my amendments is essentially to try to get the Minister to justify the powers that he is taking. In order to put the spotlight on those individual powers I have drawn up these amendments, which I am pleased to see are supported by others in several respects. Amendment No. 32 would remove from subsection (1) the power to repeal or replace any legislation. It is an attempt to get the Minister to justify all the words that are in the subsection at the moment.
Amendment No. 33, which is supported by the Liberal Democrats, would cut out the power enabling the Government to
“amend, repeal or replace legislation in any way that an Act might”
and to
“amend, repeal or replace legislation so as to—
(a) confer functions on any person (including functions of legislating or
functions relating to the charging of fees);
(b) modify the functions conferred on any person by legislation;
(c) transfer, or provide for the transfer or delegation of, the functions
conferred on any person by legislation.”
I should like the Minister to give us some examples of what he would consider to be a mischief that needs to be addressed by this provision and to explain why he feels that these powers should be so extensive. I hope that he will take his responsibilities to do that seriously. He has not necessarily shown much flexibility up to now. I hope that he will realise that unless we can receive assurances that these provisions are essential for the avowed objective of deregulation, we will draw an adverse inference and think that these powers are designed to give the Executive even more power than they already have over Parliament.
Amendment No. 69 is a significant amendment, if I may say so modestly, Mr. Caton. It draws attention to the common law that has developed and evolved in this country over many centuries. It would remove subsection (3)(b) and thus make it impossible to make an order under section 1 for a purpose specified that would make provision for codifying rules of law.
I cannot understand why the Government want to replace the common law; with its capacity to evolve in line with changes in society through the use of precedent, convention and rulings in the courts of this land, it has served this country extremely well over many centuries. Why do they want to make changes to that law under the delegated powers? It would mean, in effect, that if a Minister were to suffer a reverse in the High Court—that happens from time to time under all Governments—and a measure was struck down as ultra vires or as having a different intention from the one that the Minister hoped that it had, an order could be rushed through rectifying the situation and negating the entire judicial process.
Statutes have been struck down in the High Court in the past and the Government have tried to put the matter right in primary legislation, which is their privilege. But surely they should not be able to correct every error in the law by fiat, using an accelerated  procedure that denies the power of Members of Parliament to hold the Government to account, to amend the proposals and to discuss them in full.
Amendment No. 35 would omit subsection (5), which is about binding the Crown. Why do the Government want to bind the Crown under this Bill? I hope that the Minister will answer that question. He will be aware of the articles suggesting that the monarchy could be abolished under these provisions and it might not be so easy to do so if the amendment removing subsection (5) were accepted.

Oliver Heald: Does my hon. Friend agree that it would also be helpful to have some information about what consultation has taken place with the Palace about this provision?

Christopher Chope: I do indeed agree that that would be very useful. The Minister may say that the proposal has been greeted with tremendous enthusiasm, but it may be otherwise. I would be very surprised if it had been greeted with enthusiasm by the Crown, but it is for the Minister to justify his position.
This group of amendments contains a series of specific proposals, most of which have been tabled by Liberal Democrat Members. I hope that the Minister will address each of them seriatim, and justify the opposition to each of those amendments if that is the Government’s position. It is very valuable to have a chance under these detailed amendments to consider each provision specifically. I will not comment further and steal the thunder of those who tabled the amendments; the fact that we have a chance to consider each of the provisions separately will add to the quality of our debate and enable us to scrutinise the Bill with maximum focus on the powers that the Government are seeking and why.
Several hon. Members rose—

Martin Caton: Before I call the next speaker, it might be helpful for the Committee to know that as the amendments cover the substance of clause 2, I will not call a separate stand part debate. Hon. Members should bear that in mind in their contributions.

David Howarth: I want to cover four separate aspects of the amendments. The first is sub-delegation, which is raised in amendment No. 45. the second is the purpose for which the Bill might be used, to which we refer in amendment No. 46. The third is the new clause and the new schedule, which constitute the first of two attempts to restrict the power of the Government to use the Bill to deal with particular Acts of Parliament, which would be protected from the order-making power in the Bill. Finally, as the hon. Member for Christchurch (Mr. Chope) mentioned, there is the series of new clauses about important aspects of the law, including civil liberties law. We hope that the Government will, in each case, either tell us why they want to be able to use  the power in the Bill to overturn or overcome it, or accept the amendment because they have no desire to use the power.
Let me start with amendment No. 45. In a way, it is consequential or additional to the amendment that seeks to remove part of clause 2. It seeks to remove clause 2(2)(a), which allows legislative functions to be conferred on other persons, and to replace it with its opposite: that no order under the Bill shall confer on any person the power to legislate. Why do the Government want a power to transfer legislative authority to any person? It is bad enough that they want a power to change primary legislation by statutory instrument. How much worse is it that legislative power might be transferred to another person who, as far as I can tell, will be able to make further legislative change without a statutory instrument or any parliamentary scrutiny at all? In many ways, that is the most dangerous part of the Bill.
We are considering the transfer of legislative power to people who are not even Ministers, so would not be capable of being questioned by the House about any use of the power granted to them under the clause. Who are those people? If the Minister will tell us, perhaps we can attempt to write something into the Bill that will accord with his wishes.

Mark Harper: While the hon. Gentleman was so ably explaining his concerns, it occurred to me that there is no provision concerning the nationality of such people. It is entirely possible that under this clause the Minister could transfer legislative powers to a foreign Government or Head of State, effectively transferring to some extent the sovereignty of our country. That is allowable within the provisions of the Bill. It might sound outlandish, but that is what it gives Ministers the power to do.

David Howarth: That is absolutely right. I was coming to precisely that point. Depending on the kind of nightmares that hon. Members might have, this provision would allow, presumably by changes to the Parliament Acts, the transfer of the sovereignty of Parliament to President Bush—

Mark Harper: President Chirac.

David Howarth: Or President Chirac or, perhaps even worse from the point of view of the Conservative party, to the President of the European Commission. There is nothing in the Bill that would prevent that from happening. Because there is nothing in the Bill about what sort of legislative function is being referred to—

David Heath: We often loosely talk about Henry VIII powers. That is precisely what this is. It is the power that Henry VIII took upon himself to issue any edict and for it to be termed a law passed by Parliament. It seems to me that we have regressed several centuries.

David Howarth: To be fair to Henry VIII, he was not taking any powers as great as this. In fact, he removed the jurisdiction of the Bishop of Rome, so transferring legislative power abroad is the opposite of what he was doing.
This seems to be the most extraordinary clause in an extraordinary Bill.

Oliver Heald: It opens up the spectre of the Government contracting out tax raising and similar issues, taking us back to the middle ages and the days when people such as the sheriff of Nottingham were given power to levy taxes in whole areas of the country. At the time of Morton’s fork, subcontractors were just told to go out and levy taxes. That may be going a little too far, but it is a matter of concern that whole areas of government could be farmed out to all sorts of organisations. They might have important functions and we would have little say over whether that should happen or not.

David Howarth: The hon. Gentleman raises a point that the Minister must address—sub-delegation—and referred to increasing taxation. Clause 5 states:
“Provision under section 2(1) may not impose or increase taxation.”
However, the question is whether that clause refers simply to the first order made under clause 2 or whether it also applies, although it does not say so, to any order issued by any person to whom legislative authority has been transferred. If the latter is possible, all the safeguards in the Bill—there are not many, but the Minister keeps referring to them—would be avoided simply by the device of first transferring legislative authority to another person and then giving that other person power to legislate without the safeguards or restrictions in the Bill. That is the reason for amendment No. 45.
Amendment No. 46 is an attempt to impose on the Bill a notion of purpose or scope which is derived from the legislation that the order would purport to change. No order for any purpose substantially different from the purpose of the legislation that is being changed would be allowed. The idea is to ensure that any new policies or principles brought forward by the orders would not be allowed to go through the Bill procedure and would have to be discussed in primary legislation. This morning, I discussed the principle, which I hope the Committee accepts, of this and the previous amendment that it is important for Parliament to discuss in a Second Reading debate any policy or principle that has not previously been authorised by Parliament. The purpose of amendment No. 46 is to reinforce that principle.

Christopher Chope: Does the hon. Gentleman believe that without amendment No. 46 the Government could amend the Bill outside the terms of its long title? We cannot do that in Committee even when we are considering it as primary legislation.

David Howarth: That is precisely right. The scope of a Bill is a parliamentary concept and does not necessarily apply in the outside world or in public law outside this Palace. There is a grave danger of what the hon. Gentleman says: that without the amendment that notion of scope will not escape outside the Palace of Westminster and legislation could be changed under the Bill outside the scope of the long title of the original legislation. That would be extraordinary because it would be more than we can do in our own procedures.

David Heath: The hon. Gentleman is making a cogent case. He said, quite rightly, that scope is a parliamentary concept, but that ultra vires is a legal one. Without that modification, it seems that the legislation would have the ability to circumvent the concept of ultra vires by effectively allowing anything to fall within the Minister’s powers without reference to the primary legislation. That principle cannot be legally sound.

David Howarth: That is right, and without amendment No. 46, it would be difficult for a court to take a different view from that just mentioned by my hon. Friend.
I do not want to delay the Committee for too long so I shall now turn to new clause 7—

Andrew Love: Taking up the point just made about courts, could the hon. Gentleman envisage a situation in which a court took a substantially different view of the legislation from that intended by Parliament, and that the latter might wish therefore to amend that legislation in a way that was more appropriate for its original idea? In those circumstances, would not the issue of substantially different purposes be called into question because of the different view taken by the courts from that taken by Parliament?

David Howarth: I thank the hon. Gentleman for making that point; it allows me to make it clear what the amendment is about.
Parliament can, of course, do whatever it likes, as long as it does it by primary legislation. If a conflict were to occur between the courts and the Minister about the purposes of previous legislation, the issue would have to be brought back for Parliament to decide. I fear that the hon. Gentleman’s intervention starts to confuse what should not be confused—the power of Ministers with that of Parliament. In fact that is entirely what the Bill is about; it keeps the notion of Parliamentary sovereignty separate from that of Ministerial power.
Let me turn to new clause 7 and new schedule 2—

Oliver Heald: Before the hon. Gentleman does that, will he recognise that Acts often set up many regulation-making powers, and bodies or regulators, and what they do is done through secondary legislation? That means that with, for example, the Education Bill, which runs to more than 200 clauses, and in which many powers are given to various bodies and so on, Ministers will, in order to avoid difficulties  that they might have with some of their colleagues, be able to pass the law in its current form and change all sorts of provisions within it afterwards. They could give greater powers to certain regulators and lesser ones to others. They would be able to do all that on the basis of 90 minutes of discussion, rather than a full day on the Floor of the House, thus avoiding difficulties.

David Howarth: Yes, that is absolutely right. The danger is that we transfer the authority of Parliament to the Minister, and allow that latter, in effect, to transfer that authority to subordinate bodies, which ought to be subject to the courts. I am not talking about Parliament being subject to the courts, but subordinate bodies.
I shall now turn to new clause 7, and new schedule 2, to which it is attached. New clause 7 lists two specific Acts of Parliament that should be immune from the Bill, and the new schedule lists a number of others. I shall deal first with the two Acts of Parliament listed in the new clause. The first is the Bill before us. The powers in it must not be used to change the Bill itself when it becomes an Act; otherwise, anything that we talk about here, this week or next, would be utterly pointless. The Minister has frequently responded by saying that there are safeguards in clause 3. In due course we shall discuss whether the safeguards in clause 3 are adequate. Even if they are adequate, however, if the Bill is allowed to be applied to itself, they could be removed by statutory instrument, with a short discussion in Committee and an hour and a half of debate, or less, on the Floor of the House, followed by a vote. So the Minister cannot resist restricting the use of the Bill such that it cannot apply to itself.
The second Act that is specifically mentioned in the clause is the Human Rights Act 1998. The reason for that is that the Human Rights Act applies unless legislation specifically says that it does not. It has been said that orders under the Bill could not be too destructive of political and civil liberty, because those orders might themselves be subject to human rights review in the courts. The trouble with that argument, even if it is true, is that it is flawed. The order under the Bill could itself, at the same time, amend the Human Rights Act, so as to give no room to the courts to review the new law under human rights standards. Again, therefore, I do not see how the Minister can resist incorporating a provision whereby the Bill may not change the Human Rights Act. All we are asking for is acknowledgment from the Government that, in the hierarchy of law—statute law in particular—the Human Rights Act stands at a higher level than the Bill.
New schedule 2 is an attempt to list another set of Acts that should perhaps be immune from the provisions of the Bill. It is a long list, and if I had time I could go through each item one by one and say how important it is. I am not necessarily tied to that list; if other Members want to propose other Acts that  should be added, I should be glad to consider them. However, I should perhaps mention what types of Act we have included as a starting point.
Many of the Acts are the basis of the constitution itself. The Act of Settlement 1700 is one, as are the Acts regarding succession to the throne. Then there are the Acts regarding Parliament, such as the Parliament Acts 1911 and 1949 and the various Acts concerning the House of Lords, as well as the Acts about the composition and powers of Parliament, and statutes that govern democracy—in fact, which in many ways constitute our democracy. In addition, there are the statutes that govern elections and parliamentary constituencies, and statutes which mention the rule of law. There are also the statutes that establish the independence of the judiciary, such as the Constitutional Reform Act 2005.
So that is the first set: the constitutional statutes. Then there are statutes about other constitutionally important relationships, such as that between the Executive and the legislative branches: the Ministers of the Crown Act 1975 and the Ministerial and Other Salaries Act 1975—it is because of the latter that the unfortunate Minister for Women is not allowed to be paid at the moment, because otherwise the Government would exceed the limit on Members who can be paid a ministerial salary. That provision is important because it limits the power of patronage that the Administration has over the House of Commons.
Secondly, there is the relationship between Church and state. As a Liberal, I am from a political tradition that would rather like to see them separated—the disestablishmentarian tradition. Even so, I would find it outrageous if the Church of England and the Church of Scotland were to be disestablished by order. If that were to be proposed, it should be done by primary legislation. Of course, the Church in Wales was disestablished under a Liberal Government, and it would be outrageous if it were to be re-established by statutory instrument.

Mark Harper: One point that occurs to me, tempting though it may be for a Catholic, is that it is effectively an anti-Henry VIII provision, because it could give people the power to reunify the Church of England and the Church of Rome.

David Howarth: That should certainly be a matter for primary legislation—or, if the Church was disestablished, a matter for the Church.
The list in new schedule 2 includes also the devolution settlements for Wales, Scotland and Northern Ireland. Although the Bill already provides for that, it would give extra protection to insert those statutes. Another Act in the list is the Local Government Act 1972, rightly so because the relationship between local and central Government is of constitutional importance. Structural reform,  which the relevant Minister mentioned only a few weeks ago, should be done by primary legislation and not by order.
The relationship between the United Kingdom and the Commonwealth, which is dealt with in the Statute of Westminster 1931, and between us and the European Community, which is dealt with in the European Communities Act 1972, are of fundamental importance—as are civil rights and liberties. The list is probably incomplete, but it is a starting point.
We want the Government to respond individually to the new clauses and to say why they want the power to change the law in those respects by statutory instrument. The new clauses deal with judicial tenure and the independence of the judiciary, the House of Commons and the House of Lords, the establishment of the Church, fundamental rights such as habeas corpus, the fundamental rules of public law and of natural justice, elections, jury trial, extradition and compulsory purchase—or, for those with connections with the common law tradition as it appears in the United States, the appropriation of property. Why do the Government require the power to change fundamentally those aspects of the law by statutory instrument? They should be dealt with by Act of Parliament.
That concludes the four matters that I wished to bring to the Committee’s attention, and I hope to have justified the amendments and new clauses.

Mark Harper: I shall limit my remarks primarily to those amendments that stand in my name and that of my hon. Friend the Member for Christchurch.
When we were discussing clause 1, I thought that it was the most worrying part of the Bill, but I agree with the hon. Member for Cambridge that it is subsection (2), which would be removed by amendment No. 33. That provision effectively allows Ministers to confer powers on others to make legislation. At least transferring powers to Ministers and the Executive means that they are still accountable to the House of Commons. I would like the Minister to explain exactly what type of individuals or organisations he has in mind to delegate legislating powers to and the scope of such delegation. If the Government plan to give legislative functions to individuals other than Ministers, what controls would they wish to exercise over such persons to retain even the hint of parliamentary accountability. Unless the Minister has a comprehensive answer to that, clause 2(2) should not remain in the Bill.
Amendment No. 32 is sound. Again, it limits somewhat the Bill’s ability to amend legislation and stops Ministers wandering off and using the Bill much more widely. If Ministers were unable to repeal entire Acts or replace them in total and could only make amendments to them, it would restrict the powers at least to some extent. However, if that were the only change, it would not be particularly welcome. I will not dwell on this. My hon. Friend the Member for Christchurch has sensibly set out our concerns about Ministers wanting to make substantial replacement of  the common law with statute. Common law has served this country well. I see no great reason for codifying great swathes of it.
My final point is on amendment No. 35. The proposal to bind the Crown is of great concern. We know that in Parliament and in public discussions have started about the proper use of the royal prerogative. Those prerogative powers to make international treaties and to commit Her Majesty’s forces to war are incredibly important. Any changes to those powers should be decided by proper discussion in Parliament on the Floor of the House. They should not be changes that Ministers can make by order.
To reduce or move the control of those prerogative powers to Parliament, or worse, possibly create new prerogative powers under clause 2(5) that could then be taken by the Prime Minister and added to all the others, takes us in the opposite direction to that which people generally feel is desirable. These are modest amendments, in terms of keeping the Bill on track with the Minister’s stated objective of being of a deregulatory nature. I look forward to hearing him take us through each part of the clause and explaining why the wording should remain as it is and why he cannot accept our amendments.
I turn briefly to the new clauses and the new schedule tabled by the hon. Member for Cambridge. I will not dwell on them at length because he has gone through the reasons for them very well. These are sensible proposals. They are largely constitutional in nature. Again, the Minister should take us through each one in turn; if he rejects any of them, he needs to tell us why. The only reason I can think of is that there is an intention or, at least, a wish to keep the options for this Bill available for use in those areas. Otherwise, I cannot see why he cannot accept our amendments.
As my hon. Friend the Member for Christchurch said, we are simply looking at what the Minister said both in the House and in his response to the Regulatory Reform Committee. We are trying to get the Bill accurately to reflect the Minister’s and the Government’s stated purposes. If he chooses not to accept our attempts to do that, he may wish to table amendments which, with the help of the vast number of civil servants and parliamentary draftsmen, can be drafted in a more sophisticated and elegant fashion. If he cannot do that, it may simply be that there is some more sinister purpose behind the Bill. I look forward to the Minister reassuring us—to use the word of the week—that that is not the case.

Oliver Heald: I shall make just one or two comments. Clause 2(2) is worrying, so amendment No. 33 is important. Amendment No. 45 also touches on the point.
Why is it that the Government want to confer functions–including legislative functions—on other people? If one reads the explanatory notes, the answer is supposed to be in annex A. The notes say, in relation to clause 2, that annex A
“sets out a few examples of some of the ways in which it is anticipated that the order-making power may be used.”
Yet when one looks at annex A, on page 18 of the explanatory notes, there is nothing that talks about giving powers to people to legislate in the way that clause 2(2) mentions. Annex A refers to the Department for Trade and Industry having proposals to simplify legislation on employment, the construction industry, weights and measures, consumer rights and the energy industry. The annex says that the proposals will be implemented under Part 1 of the Bill. What power is it that the Minister is proposing to confer on another person about legislation relating to employment? Many of us would be worried if important issues on governance of trade unions or on employment rights were dealt with by anybody other than a Minister.

Mark Harper: My hon. Friend’s remarks prompt me to think of a large flaw in the proposed provisions. The point he makes about trade union law could also be made about business regulation. As the Bill is currently drafted, Ministers could delegate powers to the very bodies that those powers refer to. Trade unions could be given the power to make laws relating to trade unions, and businessmen could receive powers to make laws referring to competition law. That would be intolerable.

Oliver Heald: Of course there is that threat. Alternatively, it could be that the Government are just going to farm things out to a regulator, quango, executive agency or something of that sort. As someone who practised as an employment lawyer for years, acting on both sides—for trade unions and employers—my view is that these are important matters. They are rights that were fought for. Both the Conservative and the Labour parties have introduced important rights in the labour law field over many years. The Liberals’ record is less good.

David Howarth: The Trade Disputes Act is important.

Oliver Heald: I will give the hon. Gentleman the Trade Disputes Act, but whatever one says, both sides of the House have considered for a century or more that employment rights are an area in which the House should have its say, and where Ministers have an important function. Likewise, the construction industry is one of our most vital industries. Is it really said that the main provisions for that industry should be dealt with by some other person, and, if so, who is that? Weights and measures are also of great importance to a major industry in the country. Consumer rights are fundamental rights in many cases; young people are protected up to the age of 18 at present, and have quite strong protection from credit agreements and the like. There are many consumer rights that I would not want to see farmed out to a quango, or at least I would want to have a good say about it and look at the detail before agreeing.
The Government are proposing major changes to the energy industry and that nuclear power stations may be built for the first time in a generation. Do we really want such important decisions about energy policy and changes to the law put into the hands of people who are not Ministers?
The Minister may have an explanation for that, but I do not think it is in annex A. As far as I can see, it does not say anything about handing powers to other persons. I would be grateful if the Minister points out where it says that. Similarly, it does not say anything about clause 2(5). An order under clause 1 may bind the Crown, but if it is thought that prerogative powers are involved, or a change in the relationship between Executive and Parliament, it should say so in the notes, at the very least.
That is a reflection on amendment No. 35 to remove subsection (5). It is a probing amendment—at least I think it is a probing amendment; it is tabled by my hon. Friend the Member for Christchurch, and he may well think that it is. It would be interesting to know what the Government have in mind in clause 2(5) and to know whether the palace has been consulted about what may be an important change from its point of view.
On clauses 7 to 16, it was clear from the discussion on new clause 2 that many Acts would come under the categories that I set out as important in relation to those orders that should not be made. It is right that the Minister should go through each of those. One has the suspicion that Departments may be producing plans to deal with religion, and there may be plans to do something about the Church of England. I mentioned the United Reformed Church Act 2000, which could be affected by the Bill. If the Government have no plans to change the laws on Churches by order, surely they can say so, include that in the Bill and make it the law.
Similarly, judicial tenure is of constitutional importance. The Government should not interfere with judges. Natural justice would have been introduced under my proposal as part of the European convention on human rights and the Human Rights Act 1998. It is an important provision.
We then come to habeas corpus, or what is left of it following the Government’s actions in recent years. Jury trial is under threat and there is also the problem of extradition. The more we consider such things, the more we realise that these are controversial matters. The Government are proposing that there should not be a jury in complicated fraud cases. On extradition, they have agreed with the Americans that British citizens can be exported over there without any evidence being presented in a court, but the same reciprocal arrangement does not apply here.

Mark Harper: And it never will.

Oliver Heald: An important part of our liberty is being affected. The confiscation of property is also important. All of that is taking place against a  background of the introduction of other measures that also limit our liberties. The new clauses refer to the Civil Contingencies Act 2004, which is an important Act that takes liberty away from the individual.
The hon. Member for Somerton and Frome, in his shadow Home Office guise, has dealt with numerous Bills that curtail liberty. The Identity Cards Bill is on track and other proposals concerning terrorism have been put before the House. Now we are asking whether all that remains of habeas corpus can be thrown away—removed and abolished—by an order that may not be debated by the House of Commons. That is being done in the name of business, which is being told, “This is for you. We will take burdens off your back, and we’re going to do it with this Bill.” What business wants to abolish habeas corpus by order? None that I have come across has ever said that. I do not think that businesses would want property to be confiscated. Do they want an end to jury trial? I do not think so. Extradition? They may have concerns after the recent NatWest case, because bankers will be worried that their extradition position can be changed by order.

David Heath: The hon. Gentleman makes a powerful case in support of my hon. Friend the Member for Cambridge. He mentions the number of Home Office Bills, as I did. He will recall that those were often extremely hard fought in both Houses. The other place has provided the constitutional safeguards that this place has been unable to provide, and we have often ended up with compromises involving safeguards being written into legislation. The problem with the procedure before us is that all those safeguards could be unlocked the moment that primary legislation has gone through, by an Order in Council, to which it is very difficult for the other place to apply the same blocking procedures. That essential constitutional lock on the powers of an elected dictatorship is therefore missing.

Oliver Heald: I wonder whether business would want to lose a Bill like this one simply because the Minister cannot provide the safeguards that he agrees are necessary.
I agree with the hon. Member for Somerton and Frome, and the Home Office Bills to which he referred were often accepted by the Minister in question. I remember the right hon. Member for Sheffield, Brightside (Mr. Blunkett) saying after a particularly bloody encounter with the other place that he recognised that the final outcome of the Bill was a fair compromise.

David Heath: Through gritted teeth.

Oliver Heald: The right hon. Gentleman probably had gritted teeth, but our procedures exist for a reason. I do not think that the Minister wants to use the order-making powers in the Bill on the most important matters. Why will he not concede that a matter such as judicial tenure—the Government interfering with judges—is off the agenda? Why will he not agree that for the British Government to interfere with the rights of natural justice would be a scandal? Why will he not  say that interfering with the way in which we deal with elections is off the agenda? If we want to do such important things, we should follow the normal procedures of the House. Is the Minister seriously going to disestablish the Church or abolish jury trial by order? If so, then it is time that the Government were kicked out.

Andrew Love: May I try to put the other side of the case? In the previous Parliament, the Regulatory Reform Committee abolished the last vestiges of the Sunday Observance Act 1780, and there has been much comment over the past few years about reusing the blasphemy laws. A considerable number of ancient statutes still apply. Is not the danger of having the catch-alls that hon. Gentleman sets out that we will catch a lot of ancient, redundant legislation that could best be dealt with in the procedure before us?

Oliver Heald: I do not think so. The hon. Gentleman makes his case in a much more coherent way than the Minister, and makes the fair point that there have been difficulties in deregulation. He will have seen the consultation document that the Government put out, which suggested a way of broadening the definition of burdens, introduced simplification without the burdens test and suggested that non-controversial Law Commission Bills should go through. We all agree about that, and that is what is so ludicrous. Business wants the Bill, yet it is in danger of losing it because the Minister will not introduce the changes that would make it acceptable to all reasonable people in the House of Commons and the other place. He is wrong to force us to suggest that he might be able to use the amendment to abolish the Church of England or disestablish it. I am anti-disestablishment, but we are making a serious point. These matters are at the very high end of important House of Commons considerations, and they should not be dealt with by a fast-track procedure that cuts parliamentary corners.

Jim Murphy: Again, we have had a series of interesting contributions from Opposition Members. They made some probing points and made several debating points for the sake of it. I understand why they must do that.
Although this is the clause stand part debate, I shall comment specifically on the amendments. Amendment No. 32 provides that orders should not repeal or replace legislation, but only amend it. It would not be possible for an order to modernise regulatory regimes and replace outdated provisions. Therefore provisions could not be consolidated and simplified in an order. Amendment No. 32 would prevent orders from delivering wide-ranging reforms, such as the fire safety regulatory reform order. It is important that orders can deliver substantial reforms and bring legislative changes together into one order when that is the most appropriate method.
Amendment No. 33 would seriously impede the Government’s better regulation agenda, which the Opposition claim to support. In general, the ability to confer the function of legislating is of particular importance, as orders need to be able, when  appropriate, to deliver large-scale reforms to entire regulatory regimes. Bills that establish regulatory regimes often confer powers to make secondary legislation, since it is often not appropriate or possible for all the detail of a statutory regulatory regime to be set out in primary legislation. Reforms that amend those regulatory regimes must therefore be able to confer the same powers. The ability of an order to make provision to confer, modify or transfer functions is essential to ensure that the mergers of regulators recommended by Philip Hampton can be delivered by way of orders under part 1.
Hon. Members may welcome some background to the debate. In the 2005 Budget, the Government accepted—as did the Opposition—the recommendations of Philip Hampton’s report “Reducing Administrative Burdens: Effective Inspection and Enforcement”. It was extensive in its scope: it considered the work of 63 national regulators and 468 local authorities. It specifically recommended that 31 of those 63 national regulators should be consolidated into seven thematic regulators.
Philip Hampton said, and the Government agreed, that those smaller regulators were unable to take a whole-system view of their regulatory field and, as such, were less able to make good risk judgements than regulators with a broader remit. It was also more difficult and more expensive to have a comprehensive risk assessment system if data were split across several regulators with similar areas of responsibility.
Aside from those policy disadvantages, smaller regulators suffered from diseconomies of scale. The data gathered in the Hampton report show that regulators with fewer than 200 staff are on average more than £8,000 per staff member more expensive than regulators with more than 200 staff members.
The Hampton mergers—the efficient delivery of which depends on the existence of this provision—will also be beneficial in reducing the number of interfaces between businesses and regulators. The mergers have widespread support from business and regulators.

Oliver Heald: I support the idea of merging the regulators. Will the Minister explain what will happen and provide a practical example—let us say the DEFRA example? What are the current functions, and how would they be merged? He does not have to use DEFRA as an example; if he wants he can use the Department of Trade and Industry to explain it. Will he explain any specific plans so that we know what he means?

Jim Murphy: The specific suggestions in Philip Hampton’s report are about having thematic regulators. The idea is that through the orders enabled by the Bill, the smaller regulators and non-contentious mergers would be delivered. I hope that that reassures the hon. Gentleman—if that is what he is seeking.
The Government, however, made it clear before consideration of the Bill that the more contentious larger mergers of more substantial regulators would have to be done by primary legislation. Those larger mergers would be done in an entirely different way. With regard to enablement in the Bill, we are talking about non-contentious mergers that command the support of business and those consulted. To reassure the hon. Gentleman—I think that he is looking for that—the substantial mergers of the larger organisations in the thematic areas spoken about by Philip Hampton would still require primary legislation.

Christopher Chope: Will the hon. Gentleman give way?

Jim Murphy: I will make some progress first.
Amendment No. 34 removes the ability of orders to make
“consequential, supplementary, incidental or transitional provision”.
Clause 2(4) reflects the situation under the 2001 Act, which enables, for example, an order that repeals a particular provision to make the necessary consequential changes to any other provisions that refer to it, so that out-of-date references to provisions that no longer exist are not left littering the statute book. Amendment No. 34 would remove the ability of orders to tidy up the law and make the necessary additional changes.
Amendment No. 35 would mean that the Bill would not explicitly provide for orders to bind the Crown. Not unreasonably, there were some questions about that, which I will, of course, seek to answer. In the absence of that explicit provision, Crown servants on Crown business could argue that, while they can take advantage of favourable provisions in orders made under clause 1, onerous provisions do not apply to them. For example, they could argue that the provision of orders that impose criminal offences or restate provisions relating to criminal offences did not apply to them.
The reform of the regulatory regimes will often remove or lessen the burdens that they impose. If the amendment were made, however, it would cast into doubt the ability of orders to impose onerous requirements upon the Crown and its servants. I will give a concrete example of how the amendment would cast into doubt the ability to make desirable orders. The delivery of the Hampton mergers, by way of order, is likely to require, in some cases, provisions that bind the Crown, such as in the transfer of assets from the current regulator to the new merged regulator.
I would like to reassure opposition Members. The definition of the Crown, in paragraph 1,321 to Halsbury’s guide to English law on the extent and applications of Acts is as follows:
“The doctrine of Crown immunity is not limited to the monarch personally, but extends to all bodies and persons acting as servants or agents of the Crown, whether in its private or public capacity. In particular, the doctrine embraces all elements of the Executive Government, from Ministers of the Crown downwards. This brings in Government Departments and their civil servants,  members of the armed forces and other public bodies or persons. Where it is intended that the Crown shall be subject to the provisions of an Act, the usual practice”
which we are following
“is to insert a provision, near the end of the Act, saying that this Act binds the Crown.”
That is an important clarification in order to reassure Opposition Members. Perhaps fairly, they sought reassurance that the issue did not relate to Her Majesty or any member of the Royal Household.

Christopher Chope: The Minister says that the justification for the measure is that it can be used to merge regulators, but that it will not be used to merge substantial regulators. Where does it say that in clause 2? Is clause 2 specifically restricted to the merger of regulators?

Jim Murphy: If the hon. Gentleman will allow, I will respond to those comments a little later.
Amendment No. 46 provides that orders could not reform legislation for a purpose substantially different from that of the original legislation. Although it is obviously unclear on the issue raised by the hon. Gentleman—that of substantially different purposes—putting that phrase in the Bill would not add to the merit of the Bill. The Government’s approach is different. We seek to provide general safeguards and protections, which we will debate as the Bill is subject to further Standing Committee consideration. What would be considered as substantially different purposes is open to debate and legal interpretation. As a Government, we have committed ourselves to one of the most radical regulatory reform packages anywhere in the world, which has been welcomed by business and others. Of course, we intend to deliver on that agenda, and I am concerned that the specific point in amendment No. 46 would prevent us from doing so. I have alluded to how it would affect our ability to bring about mergers of different organisations that were formed for different purposes in legislation.
Amendment No. 45 relates to the conferring by order of powers to make subordinate legislation. The amendment is designed to prevent orders from conferring powers to legislate on any person. It would therefore impose one of the same restrictions on the order-making power as exist under the 2001 Act. Consultation responses revealed that the inability of orders to confer powers to legislate has caused problems for Departments and impeded the delivery of both small and large-scale reforms.

David Howarth: Could the Minister give us examples of such reforms? That might enable us to table an amendment that would deal with those problems and yet avoid the problem with this measure, which is that it is far too wide; it transfers legislative power potentially to any person in the world.

Jim Murphy: I can give specific examples of the problems experienced as a result of the 2001 Act. A proposal to devolve fee-setting powers for local land charge services from the Lord Chancellor to local authorities in England and Wales was impeded. It was  not possible to widen the power to sub-delegate risk assessment as part of the Regulatory Reform (Fire Safety) Order 2005. A proposal to give the Secretary of State powers to determine functions of the new public health agency was not possible under the 2001 Act either.
The decision to include in the Bill the provision for legislative sub-delegation by order was directly informed by the views of consultation respondents, most of whom supported the measure. The Institute of Directors, for instance, commented that
“the safeguards should be more than enough to ensure that this power is not abused, and it is essential that we take this opportunity to add real teeth to the RRO process.”
As I said, one example of measures impeded by the restriction on conferring extended legislative powers by order involves additional aspects of the fire safety RRO, which was a substantial reform brought about as a result of the 2001 Act. It involved merging different pieces of existing legislation. However, we could have gone further with the power to sub-delegate.

Oliver Heald: It is important that mergers can take place and it may be appropriate to do some of them by order, but why would it not be possible to amend clause 2(2)(a) so that it says, “confer functions on any person exercising a regulatory function”, which is how regulators are described later in the Bill? One understands that conferring functions on a regulator in a particular way to get mergers through might be a good idea, but why does the Bill not just say what I have suggested?

Jim Murphy: The Bill does not say that partly because our ambitions are wider than the specific point that the hon. Gentleman makes. The hon. Member for Forest of Dean (Mr. Harper) asked for examples of “any person”, and we heard debating points about Berlusconi, Bush and various other people all over the world. I am sorry to disappoint Opposition Members, but that is not what is commonly considered to be “any person” in UK legislation. Examples of any person would be local authorities, traffic authorities and railway operators. Local authorities have powers delegated to them by primary legislation so that they can make byelaws affecting local areas and issues. Traffic authorities, including county councils and Transport for London, have powers under the Railways Act 2005 to make byelaws.

David Heath: Is the hon. Gentleman seriously saying that the definition in English law of the word “person” is restricted to the categories that he has just described? Is that really what he is saying?

Jim Murphy: No, that is not what I am saying. What I am saying is that “any person” is a commonly used phrased. I was highlighting some examples of these powers being sub-delegated in the past to local authorities and relevant public bodies. That is the appropriate way to progress with this matter. Any proposal to sub-delegate to any person would have to be subject to the similar protections and guarantees  that the Government have offered. The relevant Select Committees in this House and the other place will judge whether it is appropriate sub-delegation. It is clearly the case that the ridiculous suggestions about Berlusconi, Bush and others would rightly be considered to be highly controversial. That is part of the statutory consultation in the Bill. The Government have given a commitment not to bring forward highly contentious proposals, and the relevant Select Committees themselves—

Christopher Chope: Will the hon. Gentleman give way?

Jim Murphy: No, I will make some progress. The relevant Select Committees themselves would say that what the hon. Member for North-East Hertfordshire sought was inappropriate sub-delegation, but I understand it to be a parody of a debating point to talk about Berlusconi, Bush or others. It is not the intention of the Bill.

Christopher Chope: The Minister referred to the expression “guaranteed”. Most people purchasing goods would not accept an oral guarantee; they would want a written guarantee. Why will not the Minister give us a written guarantee?

Jim Murphy: As I have already said, when the 2001 Act was considered the Government offered a ministerial assurance on these matters, which operated effectively. There has been no contention on these matters since 2001 in terms of the ministerial assurance; I have given a commitment that we should not rely on ministerial assurance. As I have said on a number of occasions, we will seek ways to provide further reassurance so that there is a power of veto to the relevant Select Committees. The powers within this Bill are extended in a way that those in the 2001 Act were not in order to protect Parliament’s ability to scrutinise these proposals properly, which is part of our more ambitious regulatory reform agenda. So more than simply putting that in writing to the hon. Member for Christchurch, at the relevant point we will be offering reassurance by placing it in the Bill and seeking opportunities to do so.

Christopher Chope: Ah!

Jim Murphy: The hon. Gentleman says “ah”. I made that point on Second Reading and referred to it in my evidence to the relevant Select Committees. I am happy to do so again. However, a blanket restriction on conferring powers to legislate by order would, as I said, also have a significant impact, as I mentioned, on the mergers recommended in the Hampton report. When merging a regulator an order would have to address issues such as transfer of staff, as I have already mentioned.
I have reiterated the Government’s commitment not to deliver highly controversial measures by order and not to force orders through in the face of Committee opposition. The Committees will be provided with information necessary to enable them to consider  whether the powers to legislate are being conferred appropriately. The Bill requires that the explanatory document that accompanies a draft order must identify and give reasons for any powers to legislate conferred by the order and the procedure requirements attached to those powers. I hope that hon. Members understand that the restriction that amendment No. 45 would impose on the order-making power is something that the Government would wish to avoid.
Amendment No. 69 would remove the ability of orders to codify the common law. In relation to the common law, or rules of law as described in clause 2(3), codification can take place only if it has been recommended by the Law Commission, about whose expertise in codifying the law I am sure we are all confident.
The Government believe that such a beneficial Law Commission recommendation should be implemented by order and for that reason we cannot support amendment No. 69.
On new clauses 7 to 16, we have already debated the merits and drawbacks of listing specific subject areas that should not be amended by order. Similar issues are at stake when we consider enactments.
Despite the invitation of the hon. Member for Christchurch, I do not intend to discuss for the Committee’s benefit each of the 40 or so Acts that he listed in his new schedule, but it is clear that in clause 3 on preconditions, which we will discuss, many if not all the points that he made would be covered by paragraph 3(2)(d) respecting necessary protections and 3(2)(e) respecting
“continuing to exercise any right or freedom”.
I am sure that he is aware of that, but I understand why he made that debating point. The conditions in the Bill guarantee those freedoms and protections, which could not be overturned in the way to which he alluded.
In addition to the preconditions in clause 3, the Government have given an assurance that they will not come forward with highly controversial proposals and that they will empower the relevant Select Committees. The lists of reserved areas of competence and Acts of Parliament excepted from the order-making powers in part 1 of the Bill are not the right way forward and might even obstruct the aim of removing unnecessary burdens on business. Even the hon. Member for Christchurch acknowledged that his list might not be exhaustive, and my hon. Friend the Member for Edmonton (Mr. Love) referred as well to whether it was exhaustive.
Although protections are guaranteed by clause 3 and by the powers of Select Committees, because of the need—

David Howarth: Based on what the Minister says, the crucial point is the question of the application of the Bill to itself. He refers constantly to the protections in clause 3. We shall come to them in a while; they are not as adequate as he claims they are. Surely he must  take the point that the Bill itself could be used to remove those very protections, and that he should therefore, at the very least, accept new clause 7.

Jim Murphy: I do not accept that the Bill could be used to reform itself, for all sorts of reasons. Not least of those are the Government’s assurance in 2001, which has been generally accepted, that they should not introduce highly controversial proposals, and the Select Committees’ power to reject any proposals by order. Those are important powers that would protect Parliament from such a suggestion. Additionally, statutory public consultation would echo that point.
The specific listing of enactments would undermine our ability to reduce the burden of the bureaucracy that might follow from some of the enactments. As I said earlier, the Departments are working on simplification proposals about ways to reduce bureaucracy.
I suspect that we would not seek to change most if not all the Acts listed in the hon. Gentleman’s new schedule—or indeed those mentioned by my hon. Friend the Member for Edmonton and others that we could list—because they would be highly controversial, the Select Committees would rightly reject them and the Minister would not make such a proposal. However, we wish to cut the bureaucracy and the burdens arising from many Acts of Parliament, and to have such a prescriptive list—one that, in my interpretation, restricts the ability to reduce bureaucracy, form-filling and information sharing—would undermine entirely a large aspect of our better regulation agenda.
We must reduce bureaucracy, and an ability to do that to all sorts of different Acts which themselves are highly controversial—the Government do not propose to introduce amendments to the policy but to amend the bureaucracy attached to them—is the right way to progress. I recognise that some administrative burdens are necessary, but if we can reduce the burden on business where appropriate, we should. I am sure that Opposition Members agree with me on that.
I appreciate why such amendments have been suggested but, for the reasons that I have outlined, I cannot support them. I therefore urge my hon. Friends to oppose them. With the safeguards that I have mentioned, the clause should stand part of the Bill.

Christopher Chope: That was another extraordinary performance by the Minister. At least we have, at last, got the concession that he is thinking of tabling some amendments on Report. When are we going to see those amendments? Will they be produced at such a late stage that it will not be possible for them to be considered by the House other than as a fait accompli? Will we be faced on Report with a timetable that allows the Government to dominate the agenda with their new clauses and amendments, which always take priority, so that there will not be time to reach everybody else’s amendments? If the Government produce lots of extra amendments on Report, will the Minister reconsider the amount of time that is available for consideration at that stage?
The Minister keeps talking about debating points. Surely this is a debating Chamber. Our amendments seek to preserve debate in Parliament, rather than allowing legislation by Government fiat with no public or parliamentary debate. The Minister seems to find that rather awkward. He keeps going on about “highly controversial” and guarantees, but when we challenge him he uses an expression that we should note carefully: “Our ambitions are wider”. He gives us lots of innocent-sounding examples, but when we try to tie him down and ask him to limit the Bill to its ostensible purpose he says that that will not do; he has wider ambitions—but he will not tell us what they are. Perhaps he will let us know during a later debate.
Then the Minister talks blandly about bureaucracy—if there is too much bureaucracy, that can be a justification for removing a host of civil liberties. One of the new clauses set out by the hon. Member for Cambridge is about judicial tenure. Obviously, in that case we could reduce bureaucracy by changing the rules—we could abolish jury trial, with all those letters that have to be sent out to potential jurors asking them whether they will attend the Crown court on a particular day. It is not adequate to cite the need to reduce bureaucracy as a justification for removing civil liberties and freedoms from the people under this process.
The Minister has not given us the sort of assurances that we need, and I hope that we will be able to put one of the amendments to the vote—I shall beg to ask leave to withdraw amendment No. 32 so that we can vote on amendment No. 33, which is much deeper. If it were adopted, that would remove a lot of our concern about the Bill. The Minister has not assured us, for example, that it will not be possible under these provisions for the Government to legislate to extend the scope of existing Acts of Parliament. An expert in the Room has rightly drawn to my attention the fact that I was wrong in saying, in my intervention on the hon. Member for Cambridge, that that is governed by the long title. It is the scope of the legislation, not the long title that is at issue. What guarantee have we that the scope of existing Acts of Parliament will not be extended by subordinate legislation without Parliament’s having the chance to exercise proper scrutiny?
The story goes on. I asked the Minister what guarantee there was that the powers would not be used for major mergers. If I remember correctly, he said that he would answer that point later. He has not answered it. He asserts that the powers will not be used to govern major mergers, which would have to be done through primary legislation.
What is the definition of a “major” merger of regulators, compared with a minor merger? If one is working for an existing regulator and one faces the prospect of losing one’s job as a result of a merger, or if one feels that a conflict of interest would be created by a merger, surely that is something that one should be able to take up with one’s Member of Parliament, who would expect it to be the subject of primary legislation and therefore subject to proper scrutiny.

Mark Harper: On the point about regulators, the Minister was challenged several times, and he drew attention to one specific example—implementing the Hampton report. Given the weight that he puts on the report, it seems extraordinary that the Government do not find time, using primary legislation, to implement it. It seems to me that implementing the report is the primary justification for the Bill.

Christopher Chope: My hon. Friend makes an excellent point. If it is necessary to use primary legislation for major mergers, why cannot minor mergers be included? It would take only one big Bill to rationalise the regulatory authorities. It might or might not be controversial, but it could at least be scrutinised by Parliament. The Minister’s justifications for the Bill strike me as spurious. He is disregarding the safeguards that we have been trying to write in.

Oliver Heald: Was my hon. Friend happy with the Minister’s response to my earlier intervention? I suggested that we could reword subsection (2) so that it referred to regulators being merged. One could easily take the language from later in the Bill, where it describes regulators as “persons exercising a regulatory function”, and include it in subsection (2). The Minister would thus have everything that, up to that point, he had said he wanted; but he then said, “Ah, no; it would not go far enough, because we have further ambitions.” Does my hon. Friend have a better idea than I do about what those further ambitions are? Is that not the worry?

Christopher Chope: It is indeed the worry. That is why we are contesting the Bill so hotly. My hon. Friend and other members of the Committee are trying to constrain the Government.
I used to sit as a Minister in Committee. In those days, if someone came forward with a sensible suggestion, as my hon. Friend did today, the Minister would say, “That is a very sensible suggestion. I cannot guarantee to follow it up, but I shall take it away and think about it.” We have not had a single instance so far of the Minister saying, “I agree; it may be going too far”—or perhaps a little wide or rather ambiguous—“but I shall take it away and think about it.” Not once has the Minister said, “I will come forward with a specific amendment or new clause on Report.” That is a highly unsatisfactory way of proceeding. I do not know whether the Minister lacks the authority to exercise discretion or show flexibility but, for whatever reason, he is being intransigent and not responding to the spirit of co-operation and helpfulness that we are trying to promote.
We are indeed having a debate. I do not regard debate as a dirty word. Debate is fundamental to the whole of the British constitution and the freedom of our people. I hope that hon. Members will join me in supporting amendment No. 33.

David Howarth: I do not want to add much to what the hon. Member for Christchurch said, all of which I agree with. I should like to take up the Minister’s point  about the procedural protections that he is apparently now offering in the Bill. Previously he would only repeat the word reassurance.
The problem with the Minister’s position is that we do not know what he is proposing. There is no specificity to his proposals. The Committee will debate later whether Committee procedures are the best way to provide protection. Committee majorities are automatically in favour of the Government, and the Government whips have ways of changing Committee membership. We do not know precisely what the Government are proposing, so the Minister cannot be surprised that those on this side are not satisfied with the assurances that we have been given, especially considering how long it took to drag out of him the commitment to put some reassurance in the Bill rather than simply give verbal reassurance. I therefore suggest that the Committee should take some votes at this point.
I am happy to withdraw any suggesting of voting on amendment no. 45, because its substantive point is fully covered by amendment no. 33. However, I urge the Committee to consider what it is doing by leaving the words “any person” in the Bill. I suggest that we vote on amendment no. 46, because although the Minister says that he does not intend to use the Bill to go beyond the original purposes of the legislation, for some reason that we cannot ascertain he is not prepared to put that assurance in the Bill itself.
If possible I will also insist on a vote on new clause 7. We come back to the fundamental point that the protections in the Bill are vulnerable to the procedure of the Bill itself. New clause 7 would cover that point. I cannot understand why the Minister refuses to accept that point, when his view seems to be based on the constant repetition of the remark that there are safeguards in the Bill. Finally, I think that we should have a vote on one of the proposed new clauses; I suggest that we vote on new clause 8, on judicial tenure, to see whether the Government are at least prepared to accept that the procedures in the Bill should not be used to undermine the rule of law.

Christopher Chope: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment proposed: No 33, in clause 2, page 2, line 8, leave out subsection (2).—[Mr. Chope.]
Question put, That the amendment be made:—

The Committee divided:  Ayes 6, Noes 8.

NOES

Question accordingly negatived.

Amendment proposed: No. 46, in clause 2, page 2, line 25, at end add—
‘(7)No order may be made under section 2(1) for any purpose substantially different from that for which the legislation was passed.’.—[David Howarth.]

The Committee divided:  Ayes 6, Noes 8.

NOES

Question accordingly negatived.

Oliver Heald: On a point of order, Mr. Caton. Earlier, the Minister kindly indicated that he would provide members of the Committee with information about the meaning of the phrase “local Acts”. We have not heard when we are to receive it, but it would be convenient to have it soon because if we are not happy we might want to table amendments to later provisions.

Martin Caton: That is not really a point of order for me. However, it is a point well made, and I am sure that the Minister heard what was said.

Question proposed, That clause 2 stand part of the Bill.

The Committee divided:  Ayes 8, Noes 6.

NOES

Question accordingly agreed to.

Clause 3 - Preconditions

Christopher Chope: I beg to move amendment No. 36, in clause 3, page 2, line 31, leave out ‘he considers that’.

Martin Caton: With this it will be convenient to discuss the following amendments:
No. 48, in clause 3, page 2, line 31, after ‘he’, insert ‘reasonably’.
No. 47, in clause 3, page 2, line 31, leave out ‘considers’ and insert ‘ascertains’.
No. 37, in clause 3, page 2, line 39, leave out subsection (2) (d).
No. 38, in clause 3, page 2, line 41, leave out from ‘freedom’ to end of line 42.
No. 21, in clause 3, page 2, line 42, at end insert—
‘(f)the relevant committees of both Houses of Parliament have issued certificates that in their opinion the provision is not controversial.’.
No. 39, in clause 3, page 2, line 42, at end insert—
‘(f)the provision will remove or reduce a legislative or administrative burden.’.
No. 70, in clause 3, page 2, line 44, leave out from ‘legislation’ to end of line 3 on page 3.
No. 40, in clause 3, page 3, leave out lines 2 and 3.
No. 41, in clause 3, page 3, line 4, leave out subsection (4).

Christopher Chope: Amendment No. 36 is but the first of a number of amendments to clause 3. We certainly hope that it will find some favour with the Government. So far, we have tried to limit the Government’s powers in relation to clause 1, and failed; and we have tried to do so in relation to clause 2, and failed. I hope that we might be able to get some concession from the Minister in relation to this clause. In the previous debate, he described it as providing protections. The Bill calls them preconditions.
The amendment is fundamental, because it would introduce an objective test, rather than a subjective one, into the protection or precondition procedure. That point was expressed on Second Reading by a number of hon. Members, particularly the Chairman of the Public Administration Committee, the hon. Member for Cannock Chase (Dr. Wright). He said that the wording that is in the Bill at the moment is meaningless, because it is non-justiciable—basically, the Minister would be able to say, “I consider this, and that is final.”
Amendment No. 36 would remove the phrase “he considers that” so that a Minister would not be able to make an order under section 1 containing provision under section 2(1) unless the conditions in subsection (2), where relevant, were satisfied. It would not be for the Minister to decide in his own cause whether the conditions were satisfied, it would be a matter of an objective test. If it was obvious that the test was not satisfied it would be possible to challenge it in court.
As it is worded at present the Minister will be the judge and jury of whether the conditions, which he says are safeguards and which are the only restraint upon the exercise of his absolute power, apply. He will be the sole person to decide whether those safeguards should operate. That is unconscionable and I hope that the Minister, on reflection, will accept that the amendment should be accepted. It would strengthen the clause quite significantly.
The other amendment to which I should like to speak briefly is No. 37, which is a probing amendment to find out what the expression “necessary protection” means. At present one of the conditions is that
“the provision does not remove any necessary protection”.
Does that mean any necessary protection of the freedom of the individual? Does it mean any necessary protection for the freedom to look after the environment? I know that some people in the trade union movement have been told that any necessary protection will allay their concerns that the Government might do something which would reduce health and safety legislation or other employment law. But at the moment necessary protection is not spelt out.
The only information we have is that contained in the notes on clauses, paragraph 31 of which rather worryingly states:
“No order can be made unless the Minister is of the opinion that it would maintain any protections that the Minster considers to be necessary.”
That introduces another way in which the Minister himself would be the sole governor of whether this was a protection and, if so, whether it was a necessary protection. If the clause is indeed to provide protection and preconditional safeguards it should be spelt out. I hope that the Minister will accept that no provision should remove any necessary protection of human rights, fundamental freedoms and liberties of the individual subject and so on. We could extend that list but at the moment I do not think that this is very satisfactory.
Amendment No. 38 would remove the qualification on freedom. Why do we need to qualify our freedom in the way that this subsection does at present? It states:
“the provision does not prevent any person from continuing to exercise any right or freedom”.
Why not just leave it there rather than add
“which that person might reasonably expect to continue to exercise.”?
The prospects under the present Government are pretty grim. Reasonable expectations have fallen quite significantly. I suppose that the Minister would be able to say, “These days people do not expect to be able to continue to exercise those freedoms and so we might as well take them away from them.” Why do we need that qualification in subsection (2)(e)?
Amendment No. 39 is an additional safeguard that has been drafted to take up the point made by the Minister when he addressed the Select Committee on Procedure last month. I put question 64 to him:
“Throughout the Minister has relied upon the burden procedure and said that what the Government is trying to do is to reduce burdens. Can I ask the Minister why, in the original consultation paper, the Government said it would retain the requirement that all Regulatory Reform Orders must remove or reduce a burden—that was the basis on which you went out to consultation—but subsequent to consultation you have removed the concept of burdens entirely from the legislation?”
The Minister replied:
“As I understand it, that is an assessment based on the previous position of a legal burden, because under the 2001 Act it was a legal burden rather than an administrative burden. We can all define our own sense of what constitutes a burden but under the 2001 Act it was designated as removing a legal burden and we think we should go further than that.”
Elsewhere in that Select Committee’s proceedings, the Minister made similar comments about the fact that as it is currently defined, the word “burden” does not include administrative burdens. I thought that we should therefore put forward an amendment which would not include the previous phraseology relating to the necessity of removing a burden but would refer to the necessity of removing or reducing
“a legislative or administrative burden”.
I hope that the Minister will accept that amendment, because it is consistent with what he told members of the Procedure Committee. A number of us might not be surprised if he does not, because it would not be the first time that he has changed his mind in a short period and said something different to the Committee from what he said earlier.
Amendment No. 40 would limit the Minister’s powers—

Oliver Heald: Does my hon. Friend wish to join me in congratulating the right hon. and learned Member for North-East Fife (Sir Menzies Campbell), who has just won the Liberal Democrat leadership contest?

Christopher Chope: Based on how Members from his party have been performing on this Committee, I shall certainly do that. It is indicative of the Liberal Democrat party’s conscientious approach to this important constitutional Bill that two of its Members are here rather than joining in celebrations.

David Heath: We think that, too. [Laughter.]

Christopher Chope: It just goes to show how important we collectively think the Bill is. Constitutional significance must override party political leadership elections, of which there seem to be quite a lot these days.
Going back to the amendment, I do not understand why we should try and change the wording of the law to make it more accessible or more easily understood; the law is accessible—it is available in tomes. There are also “Halsbury’s Laws of England”—the Minister referred to part of one volume earlier. The law is accessible. How is it going to be more easily understood? And by whom? Who is going to decide that?
If we introduce changes to the law and want to simplify legislation, surely a good starting point would be not to duplicate legislation that is already on the statute book. For example, private Member’s Bills are often introduced to the House that already cover situations that are against the law or subject to regulation. However, the process of restating or duplicating the law sometimes is thought useful because it draws public attention to a particular problem.
An example of that approach is the Government’s desire to legislate against driving a motor car while using a mobile phone. It is already an offence to drive a motor vehicle without due care and attention or reasonable consideration for other road users. It is not necessary to have a specific provision outlawing the use of mobile phones by drivers, because if a driver uses a mobile phone and thereby drives without due care and attention, he is already guilty of an offence. That is an example of the temptation into which the Government falls—of wanting to increase the number of restrictions and regulations on the statute book, rather than relying on the more general provisions that are already there. In relation to that amendment, I put the Minister to proof of that.
Amendment No. 70 would remove the whole of the relevant provision in toto. The Minister will be able to respond to those issues and I look forward to hearing him agree that there should be an objective test for how those protections and preconditions are to be policed under the Bill. If he is going to be the judge and jury, there will be no effective way to police the provisions in clause 3.

David Heath: I hope that you will allow me the indulgence, Mr. Caton, of welcoming the election of my old Friend the right hon. and learned Member for North-East Fife as leader. I am grateful also to the hon. Member for Christchurch for his comments; it is important that even when there are party political matters, something as important as the matter before us gets the proper scrutiny. I hope that we are evidence of that.
I rise to speak to the two amendments in my name and that of my hon. Friend the Member for Cambridge—amendment Nos. 48 and 47. We will be covering some of the ground already covered by the hon. Member for Christchurch.
Our great difficulty is that we have what the Minister calls safeguards or preconditions that, were they objective, might be of some help. But they are not objective; they are moderated by the opinion of the very Minister who wants to make an order but who may want to avoid the scrutiny of the full parliamentary process.
The matter is crucial. Unless we have an objective test, there is no safeguard. Whatever a Minister’s opinion might be is frankly of no interest to Parliament. We want to ensure that safeguards apply whatever the personal views of the Minister involved. We are not talking about the Cabinet Office Minister, but about the Home Secretary, the Secretary of State for Work and Pensions or whichever Secretary of State might consider making an order under the Bill. What they may think satisfies those conditions may be very different from what Opposition Members or Government Back Benchers think are proper conditions on the use of orders, and still less what members of the public think.
The difficulty that we have with subsection (1) is that it qualifies every one of the conditions in clause 2. What appear to be objective tests are in fact subjective. We cannot remove that subjectivity entirely, but we  can ensure that the Minister’s opinion is properly used. We should invite justiciability—a word rightly used earlier by my hon. Friend the Member for Cambridge. We should invite the courts to take a view as to whether a Minister has behaved reasonably in coming to his view. It is not a question only of whether the process is appropriate. It is also a matter of whether the opinion is reasonable.
I entirely take on board what the hon. Member for Christchurch said about paragraphs (d) and (e) of subsection (2). What on earth is a “necessary protection” if it is only in the mind of the Minister of the day? In the past, some Ministers thought that protections were anything but necessary. Ministers, not necessarily in the present Administration but in previous Governments, have thought that protections had a very low order of priority—perhaps when dealing with employment law. Are we really content to allow Ministers to determine whether those protections are necessary when dealing with future legislation? I invite Labour Members to consider that question carefully, because I think that that is not sufficient.
I also take on board the point, perhaps made slightly tongue in cheek, about the phrase
“any right or freedom which that person might reasonably expect to continue to exercise”.
Judging by my experience of the past few years, there are very few rights or freedoms that one can reasonably expect to continue to exercise. For instance, one can no longer reasonably expect to walk across Parliament square without being accosted by a police office and told that if one is part of a demonstration one must have the permission of the Metropolitan Police Commissioner. I, as a simple soul, may have thought that that was a right or freedom that I ought to be able to continue to exercise. Some of the people who recently felt it appropriate to read out at the Cenotaph the names of those who had died in a war might have thought that it was a right or freedom that they could reasonably expect to continue to exercise, but Ministers thought the reverse. They think that that is not an appropriate right or freedom for a British subject and that they can take it away. They have expressed every confidence in the courts that they were right to prosecute people for reading out a list of names of war dead at the cenotaph, and that those people should be found guilty.
That puts our concerns about the proposal in context. Our amendments are extraordinarily modest. They would give us some hope that at least the courts might consider what is in the interests of the citizens of this country, even if Ministers—in this or a future Government—do not.

Mark Harper: Amendment No. 21, which I tabled with my hon. Friends the Members for North-East Hertfordshire and for Christchurch, relates to the issue of controversy—something that the Minister has  several times referred to. He has talked about non-controversial or highly controversial matters. My hon. Friend the Member for North-East Hertfordshire said on Second Reading that he would address that matter.
We welcome the assurances that the Minister has given that the Bill will not be used for controversial or highly controversial matters, but we should be more comfortable if those assurances were in the Bill, and did not rely on ministerial assurances. Modest though the amendment is, it strikes at the heart of the use that will be made of the powers under the Bill.
It has been suggested in the press that the Government hoped to sneak the Bill under the radar. Indeed, the hon. Member for Cambridge went one step further in his article in The Times, commenting that
“British democracy is sleepwalking into a sinister world of ministerial power”,
and suggesting that the Bill should be renamed the “Abolition of Parliament Bill”. We shall not go quite that far now, but it is important to consider amendments such as mine.
The amendment is short and simple, but as with many of our amendments it would enact something that the Minister has promised—or in this case something that he says is in the Bill. We dispute that. He has several times talked about Select Committees of Parliament having a veto. The amendment would give them a veto. In both Houses of Parliament they would have to agree that a measure proposed under the Bill was non-controversial and that it would be appropriate to proceed under the Bill. The alleged veto to which the Minister has several times referred does not appear, on our reading, to be in the Bill.
On Second Reading the Minister assured us that the right of veto—which was based on ministerial assurances made during the passage of the Regulatory Reform Act 2001—was in place. However, again—I think that I speak for both Opposition parties in the Committee—we are not convinced that goodwill and assurances from the Minister are adequate. The items should be included in the Bill.
The amendment would add to the preconditions in clause 3(2) that an order must meet to be acceptable under the Bill. Those preconditions are:
“that—
(a) the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means;
(b) the effect of the provision is proportionate to the policy objective;
(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;
(d) the provision does not remove any necessary protection”—
I shall touch on that matter when I speak to some of the other amendments in my name—and that
“the provision does not prevent any person from continuing to exercise any right or freedom”.
Adding the extra check, that the measure should be non-controversial, and that that should be agreed by relevant Committees in both Houses of Parliament,  rather than just relying on ministerial opinion, is a modest change, and is very much in line with what the Minister says he wants of the Bill.
I want to touch briefly on the other amendments in the group. Again, I support what my hon. Friend the Member for Christchurch said. The words in clause 3(2)(e),
“which that person might reasonably expect to continue”,
may not have been thought to be controversial until relatively recently, but there are some historic rights, which go back many centuries, that people could reasonably have continued to exercise, but recent Government measures call that into question. I am not sure that the measure adds a huge amount of protection and it would be interesting if the Minister would comment on that.
The biggest point is on amendment No. 36, which would remove the words “he considers that”, for the reasons that my hon. Friends set out. It is important that the tests in legislation can be considered by a court of law. Conservative Members are not entirely comfortable with that depending on ministerial opinion, especially as many of the safeguards depend purely on ministerial assurances.

Alison Seabeck: I shall touch briefly on amendment No. 21, which appears to take the route that the Select Committee proposed, but is actually slightly more restrictive. Although this is the appropriate place to consider including a veto facility in the Bill, I urge the Minister to consider the proposal and the wording suggested in paragraph 59 of the Select Committee report. I hope that the Minister will give us a commitment to take the matter forward on Report.

Jim Murphy: I am pleased to be able to respond to the points made by hon. Members and to the amendments tabled by Opposition Members. I also want to pick up the point made by my hon. Friend the Member for Plymouth, Devonport.
I start by joining the Committee in congratulating the right hon. and learned Member for North-East Fife on his successful election. I am delighted that both Liberal Democrats were able to be present throughout; I do not know whether they were invited to the party. The hon. Member for Cambridge campaigned for the person who I assume came second and the hon. Member for Somerton and Frome would not declare who he was supporting. He has no doubt gone to join the party to say, “I was on your side all the time.” [Interruption.] I see that he is now back from the party. However, that is not the point before us—

Mark Harper: That is a debating point.

Jim Murphy: It is an enjoyable point. I want to comment on amendment No. 21, which addresses an issue which is the subject of ministerial undertakings that I have made before and which I reiterate now.
The amendment is unnecessary. The Government have made a commitment not to use the order-making power in the Bill to deliver highly controversial measures. However, it should be possible to form areas in which the principles might be broadly controversial  if the order deals solely with detail and does not open up those principles. A good example is the Regulatory Reform (Prison Officers) (Industrial Action) Order 2004, which seemed controversial but nevertheless was allowed to progress. A highly controversial issue would have been identified during the consultation period for that order, and an explanatory memorandum placed before Parliament which must detail the consultation responses received.
The Government do not believe that the size of orders should be an issue relevant to whether the proposals are appropriate. Members of the Regulatory Reform Committee said that they would like to examine more substantial proposals. That is one reason why the Regulatory Reform Committee will rightly consider its terms of reference in consultation with the Leader of the House as part of the recommendations in its report.
Having the ability to deliver wide-ranging reforms by order is essential to make a real difference in cutting red tape and reducing unnecessary bureaucracy. The undertakings made in relation to the 2001 Act have worked well. So far, the majority of orders that the Government have proposed have been approved by the Committees. That has not been the case in all circumstances. The draft Regulatory Reform (Registration of Births and Deaths) (England and Wales) Order 2004 was rejected by both Committees as they were concerned that the proposals went beyond the undertakings relating to the 2001 Act. The Government are not now pursuing those proposals by RRO, and that example shows that the ministerial undertakings given in 2001 were an effective protection.

Christopher Chope: The Minister will recall that, at his meeting with the Procedure Committee, he guaranteed that if there were not a veto in the Bill, as he thought that there was, he would put one in. Is he now reneging on that?

Jim Murphy: The hon. Gentleman anticipates my next comments in response to my hon. Friend the Member for Plymouth, Devonport. There is a technical defect in amendment no. 21. I do not want to make a big point about it, but it appears that by virtue of clause 12(2)(c)(i), a certificate from Committees will be required when the order is drafted or first laid before the House. That will give the Committees a chance to see the relevant order and explanatory document. However, that is not the specific reason for not supporting the amendment. In the light of the assurances that I wish to give, the amendment is not ambitious enough.
I can give a commitment to the Committee today, in the way that I have on previous occasions, to give the power of veto to the relevant Committees here and in another place, and to the Committees charged by the House of Commons as being the appropriate Committees to consider orders. The Bill should be amended to include that veto, which is a significant change from the 2001 Act. It is an appropriate change as we seek to extend our better regulation agenda.
I underline again that there has been no suggestion in the interim period from 2001 that the current ministerial undertaking has not been adhered to. However, having listened to the observations and comments that have been made, I think it appropriate that a veto be placed in the Bill. That will be brought forward on Report.
We will now enter into a period of discussion, and if Opposition Members wish to have consultation about the specific nature of the veto, I invite the Front Bench Members of both parties opposite to have conversations with myself and officials if they feel that that would be appropriate. To get the veto provision correct will take a great deal of work and thorough consideration.

Alison Seabeck: May I thank my hon. Friend the Minister for that undertaking? He has been heavily criticised today for apparently not listening, and I think that he deserves credit for having taken concerns on board.

David Heath: Will the Minister give way?

Oliver Heald: Will the Minister give way?

Jim Murphy: I give way to the hon. Member for Somerton and Frome.

David Heath: I am extremely grateful. I am happy to give credit to the Minister when he makes a concession. He has now done so, and I am grateful. I think that it is about time.

Oliver Heald: I would like to add my thanks to the Minister for making an important concession, which goes some way to meeting the concerns that we have expressed. It is very welcome, and for my part I would be interested in taking part in discussions about the wording of the amendment to add the veto power. I think that it might also be helpful, if the Minister is prepared to do so, to consult the Chairman of the Regulatory Reform Committee, as it has played an important part in the process.

Jim Murphy: I am enjoying these 30 seconds—I am not sure if it will last. I do not know if it is a feel-good factor caused by the election of the right hon. and learned Member for North-East Fife (Sir Menzies Campbell).

Andrew Love: Don’t go down there.

Jim Murphy: I am not going to.
I am happy to enter into discussions with the Opposition Front Bench spokesmen of both parties to see whether we can find a specific wording for the veto provision. However, I wish to underline again that we will not do so in a way that undermines our ability to bring about our wider agenda of better regulation. Of course we shall take up the reasonable suggestion made by the hon. Member for North-East Hertfordshire about involving the Chairman of the Regulatory Reform Committee, my hon. Friend the. Member for Ellesmere Port and Neston (Andrew  Miller), to see what specific suggestions he would have deriving from his great experience in chairing that Select Committee.

Christopher Chope: I am grateful for that important concession. Will the Minister also include the Chairman of the Procedure Committee in his consultations? Will he remember that the undertaking that he gave to that Committee was for an “absolute veto”? I hope that nothing that he is saying constitutes a reining back from that commitment.

Jim Murphy: I do not want to get involved in discussing the specific nature of the veto, but the veto will be that the relevant Select Committees have power under the Bill to reject proposals. I do not wish to speculate on specifics beyond that, but I shall seek wide and effective consultation to see what specific suggestions hon. Members have about the shape and nature of the veto. I hope that, in the light of what the hon. Gentleman charitably and accurately calls an important concession, some of the other concerns would diminish. I know that there are some specific and additional concerns, but with the Select Committee veto in the Bill, some of the wider concerns would be overcome.
 I turn to amendments Nos. 36, 47 and 48, on which unfortunately I have rather less good news. They aim to alter the preconditions in clause 3 which orders must meet. Clause 3 provides that orders cannot be made unless the Minister is satisfied that the preconditions are met. Amendment No. 36 would remove the reference to the Minister’s opinion so that if the conditions are not satisfied, the order could not be made. Amendments Nos. 47 and 48 would strengthen the reference to Ministerial opinion, so that instead of a provision whereby the Minister must consider that the conditions are met, the Minister would have to reasonably ascertain that the conditions were met.
The Ministerial opinion requirement worked well under the 2001 Act and indeed under the 1994 Act. There is no evidence that it should be changed, and until the contributions to discussion today, no suggestion of that nature had been brought to my attention as part of the consultation. The arrangement worked well under the two previous regulatory reform Acts.
The Minister is already under a public law duty to act reasonably and to reach his decision on a reasonable basis. If, when making a decision, a Minister ignored compelling evidence from the consultation responses that the necessary conditions had not been met, he would be acting unreasonably. The Minister’s decision would, of course, be subject to challenge by judicial review in the courts, and the courts would decide whether the Minister had acted unlawfully or unreasonably in reaching his decision, and could quash the decision if he had.
For those reasons, amendment No. 48 is unnecessary and adds nothing to the clause that it would amend. In practical terms, the Minister will not lay an order before Parliament unless he is confident on the basis of consultation and evidence that the preconditions are met. There would be little advantage, therefore, in changing the reference, from one where the Minister must consider the preconditions to be met, to one where he must ascertain that they are met. For that reason amendment No. 47 is also unnecessary.

David Heath: May I return to the point on reasonableness? The hon. Gentleman is right that if a Minister did not look at evidence that had been adduced, he would be acting unreasonably, and that would be justiciable. If, however, he had looked at that evidence, and had nevertheless reached a view different from that commonly held by Parliament, that would not be justiciable, because he would have considered the evidence and come to a view, and that would be entirely consonant with this part of the Bill. So we are not just asking for the Minister to act reasonably; we are asking him to come to a reasonable conclusion.

Jim Murphy: Of course, if the Minister’s recommendations and view were not based on the evidence, that would be justiciable. The phrase that I believe was used in the 2001 Act was “of the opinion that”. Having acknowledged the consultation and the evidence arising from it, the Minister would then recommend an order to the relevant Select Committee. Bearing in mind the concession that I have already identified, even if the Minister had paid attention to the evidence and the consultation, the Select Committee could then veto the Minister’s recommended order. That is a double protection.

David Heath: I just want to agree with the Minister. The veto is important because it at least provides some sort of check. He could still come to a perverse conclusion, but provided that it were not one that—what is the phrase from the Wednesbury incorporation?—no reasonable person could have come to, he would still be acting within the law.

Jim Murphy: The Commons itself would then, rightly, take a different view and act appropriately, so there is that double protection. I do not wish to labour the point, because I think that the hon. Gentleman acknowledges it.
Amendment No. 37 would enable the condition safeguarding necessary protection to be removed. That would mean that orders could take away necessary protections. The condition was in both the 2001 Act and the 1994 Act, and has helped Committees to get to grips with proposed orders. For example, the Delegated Powers and Regulatory Reform Committee questioned a proposed business tenancies regulatory reform order to amend the provision in the Landlord and Tenant Act 1954. It is important for the order-making power to be flexible enough to deliver better regulation in the context of the rights and freedoms precondition.
Amendment No. 38 takes out the reference to rights and freedoms that a person might reasonably expect to continue to exercise. That would detrimentally change a safeguard that worked well under the 2001 Act. The reference to reasonable expectations recognises that it would not be fair to take certain rights away from people by order, but that not all rights and freedoms are reasonable. For example, a company might pollute and expect that to be considered a right or freedom, even though, of course, its ability to do so should not be extended or maintained.

Christopher Chope: The Minister has rather glibly gone over that important issue. Is he saying that some rights and freedoms should not reasonably be expected to be maintained?

Jim Murphy: The right and freedom to pollute, for example, should not be maintained.

David Heath: Or would not reasonably be expected to be.

Jim Murphy: That is a helpful sedentary intervention. It would not reasonably be expected to be. That is the type of freedom that should not be maintained. Hence, I cannot accept the provision in amendment No. 38 that orders should be able to maintain rights or freedoms that the person enjoying them could not reasonably expect to keep.
Amendment No. 39 creates a new condition that orders must
“remove or reduce a legislative or administrative burden”.
That would create an order-making power that moved back in the direction of the 2001 Act, which the Regulatory Reform Committee and, I think, all parties in the House acknowledged had an inherent weakness. I know that the Regulatory Reform Committee, which has acknowledged expertise on regulatory reform orders, has not proposed that the concept of burdens should form part of the way in which a clause 1 power is framed.

Oliver Heald: Will the Minister give way?

Jim Murphy: Perhaps for the last time, because we are not making progress.

Oliver Heald: I am grateful to the Minister. One of the points that business people make to me is that they would like the overall effect of the Minister’s proposed measures to be a downward revision—in other words, the regulation on them will become less burdensome than it is now. They do not want to face the possibility that there will be more regulation and more legislation. I know that the Minister is not aiming for that, but is there any mechanism that he can consider between now and Report that will ensure that we achieve a downward revision for business, rather than leaving open the possibility of more regulation? Will he look again at whether he can do something in the Bill to sort that out?

Jim Murphy: I am not sure that that is an issue for the Bill. I shall be happy to reflect on the issue, but whether the Government are committed to better  regulation—stripping out unnecessary bureaucracy and outdated statute—is a matter of political will rather than of the content of the Bill.

Oliver Heald: I am grateful to the Minister for giving way again. He is right that it is an issue of political will. However, we would like it very much, and so would business, if he could find a way not only to have the will, but also to have it in the Bill.

Jim Murphy: Of course, the Bill is an enabling Bill and it intends to enable the delivery of the political will that now exists. It is generally accepted by business and others that this is the most ambitious better regulation agenda of any UK Government. I am concerned that narrowing the power in this way might prevent the merging of regulators by order. The amendment also subjects the implementation of Law Commission reports to a test that is inappropriate in that context. In other words reports could be implemented only to the extent that they would do so to remove or reduce burdens.
We had all hoped that the 2001 Act definition of a burden would effectively capture regulatory reform but it did not. That fact is recognised by the Regulatory Reform Committee. I am concerned that amendment No. 39 would replicate the problems with the 2001 Act. In effect we would still have a narrow, technically defined power that is complex to use. As part of the agenda of changing the culture within Whitehall in respect of regulation it would create an additional technical hurdle for Departments and would act as a disincentive to the change in that culture that we all proclaim that we wish to see.
These amendments maintain some of the most problematic aspects of the 2001 Act as detailed in the review of that Act. This is third time that we have tried to create an effective legislative vehicle for delivering regulatory reform by order. The Deregulation and Contracting Out Act 1994 contained powers that were too narrow as did the 2001 Act. Amendments Nos. 40 and 41 would prevent a Minister from including in an order provision that simply restates legislation or codifies the common law.
Amendment No. 70, along with amendment No. 69, which relates to clause 2, further refines the drafting on this issue, but the effect is the same. As the condition which the amendment removes requires that the law can only be restated in ways that make it more accessible or more easily understood, I do not see the benefit of that amendment.In relation to the common law, or rules of law as it is described in clause 2(3)(b), codification can take place only if it has been recommended by the Law Commission and we rely on its recommendations.
I think that I have responded to most if not all of the points. I wish to emphasise again the Government’s willingness to discuss with interested parties the nature and shape of the veto power in the Bill. That significant change was signalled on Second Reading and the intention was also signalled during the evidence sessions of the various Select Committees. I hope that the veto will reduce some of the genuine concerns that  Opposition Members have about the ability to protect Parliament’s rights while also delivering in a way that the two previous regulatory reform Acts failed to do and in a way that is meaningful and maintains economic growth in the United Kingdom.

Christopher Chope: This has been rather like pulling teeth. In the end we managed to get this very important concession from the Minister about a veto on the face of the Bill. We are describing it now as a concession, but as the Minister conceded when he spoke to the Select Committee on Procedure, he already thought that the Bill contained an absolute veto. That is why he so readily told the Chairmen that if it did not contain an absolute veto he had no objection to it doing so. I hope that nothing that he has said this afternoon will mean that the “veto” will be anything other than absolute.
Some of the energy that we have expended on trying to scrutinise this Bill might not have been necessary if the Minister, when making his initial response to the Regulatory Reform Committee’s first report, which he sent to the Chairman on 24 February and which we saw late on Monday or on Tuesday morning, had mentioned the fact that he was willing to put a veto in the Bill. If it had, we would probably have started off on a slightly different basis.
Having said all that, I do not think that the veto should be the be all and end all. I am disappointed that the Minister has not been willing to strengthen clause 3 in the way that amendment No. 36 and the Liberal Democrat amendments would achieve. If the Minister is right that it does not make any difference whether it is a ministerial view or an objective view, why not have it as an objective view? We know that there are distinguished lawyers, and others who are less distinguished, who think that the wording makes it difficult for the Minister’s conclusions to be challenged, even if they are manifestly unreasonable. I hope that the Minister will think again about amendment No. 36.
He covered amendment No. 37 far too superficially. The protection offered is only such protection as the Minister deems necessary and it is very vague. I hope that he will think again about that. As far as the restrictions on freedom are concerned, if we are to restrict people’s freedoms we should do so through primary rather than subordinate legislation. I find it hard to conceive a situation in which restricting people’s freedoms should be done by an accelerated procedure and could be regarded as anything other than controversial.
I was disappointed in the content of a lot of the Minister’s response, but obviously he had been saving up his response to amendment No. 21, which was ably spoken to by my hon. Friend the Member for Forest of Dean and supported by the Regulatory Reform Committee. That has meant that we will go into the weekend in a slightly better humour than we would  have done otherwise. I still find it extraordinary that something that the Minister agreed in principle before a Select Committee is now coming forward as a concession. I do not think that one concession on this important Bill is enough.

Oliver Heald: Before my hon. Friend the Member for Forest of Dean, who moved amendment No. 21, asks for the permission of the Committee to withdraw it in the light of the Minister’s most welcome concession, I want to make two points. First, there is merit in my hon. Friend’s point about the nature of the test under clause 3 and whether it should be objective rather than subjective. If he wants to push that to a Division, I would certainly support him. It could be looked at again by the Minister.
Secondly, I personally hope that clause 3 will stand part of the Bill. Although it is right to say that it could be better, it is providing some protection. Personally, I would wish to see clause 3 stand part, even if it is not amended in the way that I would like.

David Heath: I entirely agree with that last sentiment. Now that we have clause 1 and clause 2, against our reservations, we have to have clause 3.

Oliver Heald: Exactly. The hon. Gentleman, as so often, sums it up pretty neatly.
The other point that I was going to make is that the hon. Member for Cambridge andI both tried to use our drafting skills—his are more academic than mine—and made a good effort to focus the Bill on a deregulatory overall effect. I was going to ask the Minister whether it would be possible for us to come forward with suggestions and, in the co-operative spirit that we have over the veto, to see if we cannot find some way of expressing the fact that the sum of the revision of law under part 1 should involve a downward-only ratchet. Business does not want the power to be so widely drawn that it could be used to impose regulation. I do not think that the other side of industry wants it to be so broad that it could damage its interests. If we came up with draft suggestions, would the Minister be prepared to consider them, discuss them and see whether there was a consensual way forward?

Jim Murphy: If the hon. Gentleman has specific drafts, I shall obviously be happy to consider them. However, I remind the Committee that, in my opinion, the determination to reduce the burden of bureaucracy on business, public sector workers, voluntary organisations and charities is a matter of political will and determination rather than of legislative structure.

Oliver Heald: To respond briefly, it is, of course, a matter of will. If the Minister were to be fairly non-party political for a moment, he would accept that two Governments have had a pretty good will or wish to deregulate, but neither has so far done as much as it would have hoped.

David Heath: We were all right.

Oliver Heald: It is a long time since the Liberals had a go.
The burdens barometer is up £50 billion since 1997. The Minister made some criticisms, and I do not totally disagree about the previous period not being as successful as we would have liked. If we have the political will to find a way of including in the Bill a downward-only ratchet, that would be better still.

Mark Harper: I pick up on that last point in a spirit of co-operation. The Minister is right that it is a matter of political will; the powers in the Bill can help reinforce the desire of Ministers to drive regulation downwards if the Bill can be used only for that. If that is the intention, the Bill will help Ministers in a Government committed to reduce the regulatory burden to carry it through. It will also help them in their battles with civil servants, as they explain to them that the Bill can be used only for certain things. There is some merit in what my hon. Friend the Member for North-East Hertfordshire says. I hope that the Minister considers it constructively.
The Minister gave a commitment to bring forward Government amendments on Report to include a veto in the Bill for Committee of both Houses of Parliament. I beg to ask leave to withdraw the amendment.

Martin Caton: The hon. Gentleman’s amendment has not been moved. Amendment No. 36 was moved by Mr. Chope.

Christopher Chope: I wish to put the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided:  Ayes 6, Noes 8.

NOES

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Clause 3 ordered to stand part of the Bill.
Further consideration adjourned—[Mr. Dhanda.]
Adjourned accordingly at six minutes to Four o’clock till Tuesday 7 March at half-past Ten o’clock.